1
Exhibit 10.13
MINCOM LIMITED
MINCOM INC (USA)
MINCOM INTERNATIONAL PTY LIMITED
MINCOM PTY LTD
MINCOM SERVICES PTY LTD
MINCOM INC (CANADA)
(Vendor)
and
PARADIGM GEOPHYSICAL LIMITED
(Purchaser)
BUSINESS SALE AGREEMENT
SALE OF PETROLEUM TECHNOLOGY DIVISION
(C)▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 1999
Brisbane
Ref: PCJ
J:\mincom\ptpara5.doc
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page i
T A B L E O F C O N T E N T S
1. DEFINITIONS AND INTERPRETATION.......................................................................................1
1.1 DEFINITIONS..........................................................................................................1
1.2 INTERPRETATION.......................................................................................................4
1.3 KNOWLEDGE OF THE BOARD...............................................................................................5
2. CONDUCT BEFORE COMPLETION............................................................................................6
2.1 CONDUCT OF BUSINESS..................................................................................................6
2.2 PROFITS OF THE BUSINESS PENDING COMPLETION...........................................................................6
2.3 BUSINESS CONDUCT LIABILITIES.........................................................................................6
2.4 RECEIPTS AND OUTGOINGS PENDING COMPLETION............................................................................7
2.5 ACCESS TO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PENDING COMPLETION.........................................................................7
2.6 SOURCE CODE STORAGE..................................................................................................8
3. CONDITION TO COMPLETION..............................................................................................8
4. DISTRIBUTION AGREEMENT TO MINCOM.....................................................................................8
5. SALE AND PURCHASE....................................................................................................8
5.1 SALE AND PURCHASE....................................................................................................8
5.2 EXCLUDED ASSETS......................................................................................................9
5.3 PURCHASE PRICE.......................................................................................................9
5.4 [NOT USED]...........................................................................................................9
5.5 TITLE AND RISK.......................................................................................................9
5.6 DEPOSIT AND BALANCE OF PURCHASE PRICE................................................................................9
6. ACCOUNTS PREPARATION................................................................................................10
6.1 1998 HISTORICAL ACCOUNTS............................................................................................10
6.2 31 MARCH 1999 ACCOUNTS..............................................................................................10
6.3 IMPACT OF 1998 ACCOUNTS.............................................................................................10
6.4 EMPLOYEE ENTITLEMENTS...............................................................................................10
7. COMPLETION..........................................................................................................10
7.1 PLACE FOR COMPLETION................................................................................................10
7.2 PURCHASER'S OBLIGATIONS.............................................................................................11
7.3 VENDOR'S OBLIGATIONS................................................................................................11
7.4 ADJUSTMENT OF PURCHASE PRICE FOLLOWING MARCH ACCOUNTS...............................................................12
7.5 LICENCE OF GREENSLOPES LICENSED AREA................................................................................12
7.6 STORAGE OF DATA ROOM MATERIAL.......................................................................................13
8. NOTICE TO COMPLETE..................................................................................................13
8.1 NOTICE BY THE PURCHASER.............................................................................................13
8.2 TIME OF THE ESSENCE.................................................................................................14
9. WARRANTIES - VENDOR.................................................................................................14
9.1 WARRANTIES BY THE VENDOR............................................................................................14
9.2 EFFECTIVE DATES.....................................................................................................14
9.3 DISCLOSURES.........................................................................................................14
9.4 LIMITATION ON VENDOR'S LIABILITY....................................................................................14
9.5 NO RELIANCE.........................................................................................................15
9.6 TRADE PRACTICES ACT.................................................................................................16
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PETROLEUM TECHNOLOGY DIVISION Page ii
9.7 DEALING WITH WARRANTY BREACH AFTER COMPLETION.......................................................................16
9.8 PROCEEDINGS IN RESPECT OF A CLAIM...................................................................................17
9.9 REDUCTION OF PURCHASE PRICE.........................................................................................17
9.10 NOTIFICATION OF WARRANTY BREACH BEFORE COMPLETION..................................................................17
10. WARRANTIES - PURCHASER..............................................................................................18
11. EMPLOYEES...........................................................................................................18
11.1 [NOT USED]..........................................................................................................18
11.2 VENDOR'S TERMINATION OF EMPLOYMENT..................................................................................18
11.3 PURCHASER'S OFFER OF EMPLOYMENT.....................................................................................18
11.4 TRANSFERRING EMPLOYEES..............................................................................................19
11.5 PURCHASER'S OBLIGATIONS FOR ACCRUING ENTITLEMENTS...................................................................19
12. CONTRACTS...........................................................................................................19
12.1 NOVATION TO THE PURCHASER...........................................................................................19
12.2 WHERE NOVATION IMPOSSIBLE...........................................................................................20
12.3 PURCHASER'S INDEMNITY...............................................................................................21
12.4 VENDOR'S INDEMNITY..................................................................................................21
13. CREDITORS, MARCH ACCOUNT LIABILITIES AND RECEIVABLES................................................................22
13.1 PURCHASER'S OBLIGATIONS FOR POST-COMPLETION CREDITORS...............................................................22
13.2 MARCH ACCOUNT LIABILITIES...........................................................................................22
13.3 VENDOR TO REMIT RECEIVABLES.........................................................................................22
14. ADJUSTMENTS.........................................................................................................22
15. ACCESS TO RECORDS AND EMPLOYEES AFTER COMPLETION....................................................................23
15.1 RECORDS.............................................................................................................23
15.2 EMPLOYEES...........................................................................................................23
16. NOTICES.............................................................................................................23
17. NO DISCLOSURE.......................................................................................................24
17.1 CONFIDENTIALITY.....................................................................................................24
17.2 PURCHASER'S INVESTIGATION...........................................................................................24
17.3 POST COMPLETION - VENDOR............................................................................................25
17.4 EXCEPTIONS..........................................................................................................25
17.5 PUBLIC ANNOUNCEMENTS................................................................................................25
17.6 CONFIDENTIALITY AGREEMENT UNAFFECTED................................................................................25
18. FURTHER ASSURANCES..................................................................................................25
19. ENTIRE AGREEMENT....................................................................................................25
20. AMENDMENT...........................................................................................................26
21. ASSIGNMENT..........................................................................................................26
22. NO WAIVER...........................................................................................................26
23. NO MERGER...........................................................................................................26
24. STAMP DUTY AND COSTS................................................................................................26
25. GOVERNING LAW.......................................................................................................26
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PETROLEUM TECHNOLOGY DIVISION Page iii
26. LIMITED RESTRAINT OF TRADE..........................................................................................27
27. LICENCE OF GDB DISPLAY MECHANISM....................................................................................27
28. ESCROW AGREEMENTS...................................................................................................29
29. TERMINATION OF HEADS OF AGREEMENT...................................................................................30
SCHEDULE 1.....................................................................................................................31
SCHEDULE 2.....................................................................................................................34
SCHEDULE 3.....................................................................................................................35
SCHEDULE 4.....................................................................................................................44
SCHEDULE 5.....................................................................................................................45
SCHEDULE 6.....................................................................................................................52
SCHEDULE 7.....................................................................................................................53
SCHEDULE 8.....................................................................................................................55
ANNEXURE "A" - Year 2000 readiness statement.................................................................................59
ANNEXURE "B" - Drill bit device..............................................................................................64
ANNEXURE "C" - [NOT USED]....................................................................................................65
ANNEXURE "D" - Sketch of Licensed Area.......................................................................................66
ANNEXURE "E" - December Accounts.............................................................................................68
ANNEXURE "F" - Letter of offer of employment.................................................................................70
ANNEXURE "G" - Employee benefit lists........................................................................................72
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BUSINESS SALE AGREEMENT
AGREEMENT dated 31 March 1999 between:
1. MINCOM LIMITED (ACN 010 087 608), an Australian company; MINCOM INC, a
company incorporated in Georgia, USA; MINCOM INTERNATIONAL PTY LIMITED
(ACN 010 547 270), an Australian company; MINCOM PTY LTD (No. 2931601),
a company incorporated in England and Wales; MINCOM SERVICES PTY LTD
(No. 2931602), a company incorporated in England and Wales; and MINCOM
INC, a company incorporated in Alberta, Canada (collectively the
VENDOR); and
2. PARADIGM GEOPHYSICAL LIMITED, a company incorporated in Israel (the
PURCHASER).
RECITALS
A. The Vendor carries on the Business around the world.
B. The Vendor wishes to sell and the Purchaser wishes to buy the Business.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ASSETS means the assets of the Business described in clause 5.1, but
does not include the Excluded Assets.
BOARD means the board of directors of each entity comprising the
Vendor.
BUSINESS means the whole of the business (as a going concern) the
Vendor carries on through its Petroleum Technology Division of
developing, enhancing, marketing, distributing or maintaining the
Software for the geophysical and petrophysical software industries and
marketing the Third Party Software for those industries.
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PETROLEUM TECHNOLOGY DIVISION Page 2
CGG AGREEMENT means the agreement between Mincom Limited and
Petrosystems S.A. of France commencing 1 March 1997.
CLAIM is defined in clause 9.4(a).
COMPLETION means completion of the sale and purchase of the Assets
under this Agreement.
COMPLETION DATE means 22 April 1999 or such earlier date being the next
business day (in Brisbane) after the Purchaser has deposited the
balance of the Purchase Price in clear funds into the account described
in clause 5.6(c).
CONFIDENTIAL INFORMATION includes know-how, trade secrets, technical
processes, information relating to products, finances, contractual
arrangements with customers or suppliers and other information which by
its nature, or by the circumstances of its disclosure to the holder of
the information, is or could reasonably be expected to be regarded as
confidential.
CONTRACT means a written or unwritten contract entered into by or on
behalf of the Vendor in the course of the Business which is current at
the date of this Agreement, including each Lease and each Escrow
Agreement. It does not include the Facilitation Agreements, which the
Vendor intends to terminate.
DATA ROOM means the place made available by the Vendor for the
inspection of data by the Purchaser and its advisers.
DECEMBER ACCOUNTS means the balance sheet for the Business as at 31
December 1998 as set out in Annexure "E".
DEPOSIT means the sum of $1 million, to be paid and dealt with in
accordance with clause 5.6.
DISCLOSURE MATERIAL means the material disclosed or made available by
the Vendor to the Purchaser (including material in the Data Room), or
which would be ascertainable by the Purchaser making reasonable
searches or enquiries.
EMPLOYEE LIABILITY means a liability to be assumed by the Purchaser
under clause 11.5 in respect of a Transferring Employee.
EMPLOYEE means any employee who is:
(a) listed in the Disclosure Material; or
(b) who is employed in the Business after the date of this
Agreement in accordance with clause 2.1,
and who is still employed by the Vendor when the Purchaser's offer of
employment is required to be made under clause 11.3.
ENCUMBRANCE means an interest or power:
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 3
(a) reserved in or over any interest in any asset including any
retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a ▇▇▇▇ of sale, mortgage, charge, lien, pledge,
trust or power, by way of security for the payment of debt or
any other monetary obligation or the performance of any other
obligation and whether existing or agreed to be granted or
created.
ESCROW AGREEMENT means an agreement described in Schedule 8.
EXCLUDED ASSET means an asset excluded from sale under in clause 5.2.
EXCLUDED RECORDS means those records of the Business located at the
Vendor's offices at Teneriffe, Queensland or in a computer system and
which are intermingled with other records of the Vendor or not easily
located and extracted and includes invoices issued by the Vendor and
accounts issued to the Vendor.
FACILITATION AGREEMENTS means (a) the agreement dated around 19 October
1996 between Mincom Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇; and (b) the agreement dated 7 August 1996 between Mincom
International Pty Ltd and Pares Engineering Services Sdn. Bhd of Kuala
Lumpa, Malaysia, as extended by letters dated 28 October 1997 and 18
September 1998, and as performed by Petra Resources Sdn. Bhd of
Malaysia.
GOVERNMENTAL AGENCY means any:
(a) government or governmental, semi-governmental or judicial
entity or authority; or
(b) minister, department, office, commission, delegate,
instrumentality, agency, board, authority or organisation of
any government.
It also includes any regulatory organisation established under
legislation and any stock exchange.
GREENSLOPES LICENSED AREA means that part of the ground floor of the
premises of the Vendor at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
shaded in the sketch plan in Annexure "D".
INTELLECTUAL PROPERTY means the items specified in Schedule 2.
LEASE means a lease or sublease in respect of Leasehold Property.
LEASEHOLD PROPERTY means the leasehold properties described in Schedule
1.
MARCH ACCOUNT LIABILITIES means all current and non-current liabilities
of the Business shown in the March Accounts.
MARCH ACCOUNTS means a balance sheet for the Business as at 31 March
1999, prepared on the same basis as the December Accounts and adjusted
in accordance with clause 11.4.
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PLANT AND EQUIPMENT means the plant and equipment owned and used by the
Vendor in the Business as listed in Schedule 3.
PREPAYMENTS AND DEPOSITS means the prepayments and deposits comprised
in the current assets of the Business shown in the March Accounts.
PURCHASE PRICE means the purchase price for the Assets specified in
clause 5.3.
RECEIVABLES means the receivables of the Business shown in the March
Accounts.
SERVICED OFFICE means the Vendor's rights to use a serviced office
suite at Windsor, Berkshire, United Kingdom.
SITE means a Leasehold Property or the Serviced Office.
SOFTWARE means the computer program marketed by the Vendor known as
Geolog, as more fully described in the Disclosure Material.
SOURCE MATERIAL means the source code of software and all related
necessary and available technical documentation, maintenance tools and
system utilities owned by the Purchaser on Completion or proprietary to
the Purchaser from time to time, which are required to enable a
reasonably skilled software engineer to maintain the software without
the assistance of the Purchaser.
THIRD PARTY SOFTWARE means the software described in Schedule 7, which
is marketed by the Vendor.
TRANSFERRING EMPLOYEE means each Employee of the Vendor who accepts the
Purchaser's offer of employment made under clause 11.3.
US GAAP means that accounts are prepared in US dollars and in
accordance with generally accepted accounting practices in the United
States of America.
VENDOR LOANS means the amount of working capital contributed from time
to time by the Vendor to the bank accounts described in clause 2.4
together with interest on those amounts calculated daily from the time
of their contribution to the account until they are drawn out and paid
to the Vendor, at the rate of 6.25% per annum.
VENDOR'S FUND means the Mincom Australia Superannuation Fund and the
Mincom, Inc. 401(K) Plan described in the Disclosure Material.
WARRANTY means a warranty and representation by the Vendor in Schedule
5.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
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PETROLEUM TECHNOLOGY DIVISION Page 5
(a) The SINGULAR includes the plural and conversely.
(b) A GENDER includes all genders.
(c) Where a WORD or PHRASE is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a PERSON includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a CLAUSE or SCHEDULE is to a clause of or
schedule to this Agreement.
(f) A reference to any PARTY to this Agreement or any other
agreement or document includes the party's successors and
permitted assigns.
(g) A reference to any AGREEMENT or DOCUMENT is to that agreement
or document as amended, novated, supplemented, varied or
replaced from time to time, except to the extent prohibited by
this Agreement.
(h) A reference to any LEGISLATION or to any provision of any
legislation includes any modification or re-enactment of it,
any legislative provision substituted for it, and all
regulations and statutory instruments issued under it.
(i) A reference to CURRENCY is to Australian currency.
(j) A reference to CONDUCT includes any omission, representation,
statement or undertaking, whether or not in writing.
(k) TERMS defined in Part 1.2 Division 6 of the CORPORATIONS LAW
have the same meaning when used in this Agreement.
(l) A reference to INCLUDES, INCLUDING, FOR EXAMPLE, IN PARTICULAR
or SUCH AS shall be read as if followed by the words "WITHOUT
LIMITATION".
(m) A provision in this Agreement will NOT BE CONSTRUED AGAINST A
PARTY merely because that party was responsible for the
preparation of that provision or because it may have been
inserted for that party's benefit.
(n) If any term of this Agreement is legally unenforceable or made
inapplicable, it shall be severed or READ DOWN, but so as to
maintain (as far as possible) all other terms of this
Agreement (unless to do so would change the underlying
principal commercial purposes of this Agreement).
1.3 KNOWLEDGE OF THE BOARD
Any statement made by the Vendor on the basis of the knowledge, belief
or awareness of the Board is made on the basis of the actual knowledge
of the Board after confirming the
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 6
statement with the following employees in the Business; namely, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇.
2. CONDUCT BEFORE COMPLETION
2.1 CONDUCT OF BUSINESS
From the date of this Agreement to the Completion Date (inclusive) each
of the following applies to the Vendor unless the Purchaser consents
otherwise, such consent not to be unreasonably withheld:
(a) (CONDUCT OF BUSINESS) The Vendor shall manage and conduct the
Business in its ordinary and usual course.
(b) (OPEN BANK ACCOUNTS) The Vendor may open separate bank
accounts, in the Vendor's name, in respect of the Business.
(c) (NO MATERIAL COMMITMENTS) The Vendor shall not enter into any
commitment which will involve expenditure relating to the
Business exceeding $25,000 or any related series of
commitments which would involve expenditure relating to the
Business exceeding $100,000 in total.
(d) (NO DISPOSALS) Except for transactions in the ordinary and
usual course of the Business, the Vendor shall not dispose of,
create any Encumbrance over, or declare itself trustee of any
of the assets of the Business.
(e) (SALES DISCOUNTS) The Vendor shall not give sales discounts
other than in accordance with existing sales practices.
2.2 PROFITS OF THE BUSINESS PENDING COMPLETION
Subject to Completion occurring, during the period on and from 1 April
1999 to and including Completion the Purchaser is entitled to the
takings and profits produced by, and shall pay all costs of and meet
all accruals of the Business including all outgoings in respect of the
Business and the Sites.
2.3 BUSINESS CONDUCT LIABILITIES
Subject to Completion occurring, the Purchaser, on and from 1 April
1999:
(a) assumes from the Vendor all obligations and liabilities of the
Vendor arising out of the Vendor's conduct of the Business
under clause 2.1 and will discharge them in the ordinary
course of business; and
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 7
(b) will keep the Vendor indemnified in respect of an obligation
or liability and the Purchaser's performance or
non-performance of clause 2.3(a).
2.4 RECEIPTS AND OUTGOINGS PENDING COMPLETION
During the period between execution of this Agreement and Completion,
the Vendor will open bank accounts and deposit into those accounts
amounts it receives by way of takings produced by the Vendor's conduct
of the Business under clause 2.1. The Purchaser acknowledges that the
Vendor may also need to deposit into those accounts Vendor Loans as
working capital for the conduct of the Business under clause 2.1. The
Vendor will keep records of any costs or expenses it incurs in the
conduct of the Business under clause 2.1 and may pay those costs and
expenses out of funds deposited into the bank account described in this
clause 2.4. On or after Completion the Vendor shall produce a record
of:
(a) amounts of the Vendor Loans;
(b) the total amount of costs and expenses incurred by the Vendor
in the conduct of the business under clause 2.1; and
(c) the total amount of receipts and takings of the Business
conducted under clause 2.1.
The Vendor shall provide the Purchaser a copy of that record and a copy
of the bank statements for the accounts under this clause 2.3.
If the total amount of receipts and takings remaining in the account is
insufficient to fully repay the Vendor all of its Vendor Loans and to
fully reimburse the Vendor for all costs and expenses incurred in the
conduct of the Business under clause 2.1 then the Vendor may keep for
its own account the balance of the accounts and the Purchaser shall pay
to the Vendor on demand the amount of the shortfall.
If, after repayment to the Vendor of all of the Vendor Loans, the
amount remaining is sufficient to reimburse the Vendor for all costs
and expenses, the Vendor may reimburse itself out of that account for
those costs and expenses and shall pay the remaining balance to the
Purchaser.
2.5 ACCESS TO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PENDING COMPLETION
Without limiting clause 9.5 or clause 17, the Vendor will allow the
Purchaser, pending Completion, full access to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ whenever
the Purchaser requires to discuss the conduct of the Business. Except
as otherwise approved in writing by the Vendor, Paradigm will not
directly contact any Employee except ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ nor seek to direct
any Employee (including ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) until after Completion. The
Purchaser acknowledges that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ continues to report to the
Vendor throughout the period from execution of this Agreement until
immediately after Completion.
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2.6 SOURCE CODE STORAGE
Within 3 Brisbane business days after execution of this Agreement, the
Vendor shall deliver to FR Services Ltd (care of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇)
for secure storage, pending Completion, the source code for release 6
of the Software.
3. CONDITION TO COMPLETION
This Agreement, other than this clause 3 and clause 5.6, is subject to
the Purchaser paying the Deposit in accordance with clause 5.6(a). If
the Purchaser does not pay the Deposit in accordance with that clause,
the Vendor may terminate this Agreement by notice to the Purchaser. If
the Purchaser has performed its obligations under clause 5.6(a) and has
not revoked the authority referred to in that clause, the sole remedy
of the Vendor in respect of such a termination shall be to recover the
Deposit and interest from the Purchaser.
4. DISTRIBUTION AGREEMENT TO MINCOM
On Completion, the Purchaser shall grant to the Vendor distribution
rights in respect of the Software on terms no less favourable to the
Vendor than the terms granted under the CGG Agreement. Prior to
Completion, the parties shall settle a form of agreement for this
purpose, but if that is not agreed before Completion, the Purchaser
agrees that, until a replacement agreement is entered into by the
parties, the Vendor may exercise the same rights as if the parties had
executed an agreement in the same form as the CGG Agreement (with all
necessary changes being made), including the term granted under the CGG
Agreement.
5. SALE AND PURCHASE
5.1 SALE AND PURCHASE
The Vendor will sell and the Purchaser will purchase the following
assets of the Business on Completion, free from all Encumbrances (other
than a right or interest of a party to a Contract as party to that
instrument):
(a) the goodwill of the Business;
(b) Receivables of the Business;
(c) the benefit of all Prepayments and Deposits made in respect of
the Business;
(d) the Plant and Equipment;
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(e) the Intellectual Property;
(f) the benefit of the Contracts; and
(g) the benefit of the Leases.
5.2 EXCLUDED ASSETS
The following assets of the Vendor are excluded from sale under this
Agreement; that is, the names "Mincom", "Petroleum Technology Mincom",
"PT Mincom" and any similar name or ▇▇▇▇ (other than "PTM", which is
not excluded).
5.3 PURCHASE PRICE
The Purchase Price is $14,120,000 (fourteen million one hundred and
twenty thousand dollars), as adjusted under clause 7.4 (refer Schedule
6).
5.4 [NOT USED]
5.5 TITLE AND RISK
Subject to Completion occurring, risk in the Assets passes to the
Purchaser on execution of this Agreement. Title to the Assets will pass
to the Purchaser on Completion.
5.6 DEPOSIT AND BALANCE OF PURCHASE PRICE
(a) The Purchaser, within 10 days after execution of this
Agreement, shall pay the Deposit to Mincom Limited's bank
account (BSB 064 000 ▇▇▇▇▇▇▇▇, Commonwealth Banking
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇).
(b) On or before 5 April 1999, the Purchaser shall unconditionally
authorise its bank to immediately transmit the Deposit to
Mincom Limited's bank account in accordance with clause
5.6(a). By close of business on 6 April 1999 the Purchaser
shall provide to the Vendor a copy of the wire transfer
authority and written confirmation from its bank that the
authority was received.
(c) The Purchaser by close of business on 21 April 1999 shall pay
the balance of the Purchase Price to the trust account of the
Vendor's lawyers, ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ (Account ▇▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 034 002, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇).
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6. ACCOUNTS PREPARATION
6.1 1998 HISTORICAL ACCOUNTS
As soon as reasonably practicable (but no later than 60 days after
execution of this Agreement) the parties shall procure that a calendar
1998 profit and loss statement and balance sheet for the Business are
prepared by the Vendor and audited by the Vendor's auditors, Ernst &
Young. These accounts shall be prepared under US GAAP. The Vendor and
the Purchaser shall retain Ernst & Young to perform the audit and shall
instruct Ernst & Young:
(a) to discuss the scope of audit with the parties prior to
commencing the audit;
(b) before finalising the audit, to discuss the audit with the
parties; and
(c) to take account of the reasonable views of the parties in the
conduct of the audit.
6.2 31 MARCH 1999 ACCOUNTS
Immediately after execution of this Agreement, the parties shall retain
Ernst & Young to prepare the March Accounts. The costs of having those
accounts prepared shall be shared equally between the Vendor and the
Purchaser.
6.3 IMPACT OF 1998 ACCOUNTS
Nothing in clause 6.1 or the accounts prepared under that clause
affects the Purchase Price or any transaction under this Agreement.
Completion shall not be delayed if the accounts and audit under that
clause are not finalised before the Completion Date. The Vendor and the
Purchaser shall be entitled to a copy of the audited accounts. The
Purchaser shall pay the costs of having those accounts prepared and
audited.
6.4 EMPLOYEE ENTITLEMENTS
The Vendor acknowledges that all employee entitlements were treated in
the December Accounts as current liabilities.
7. COMPLETION
7.1 PLACE FOR COMPLETION
Completion will take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or
another place agreed in writing) in Brisbane before 3 pm on the
Completion Date.
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7.2 PURCHASER'S OBLIGATIONS
On Completion:
(a) The Purchaser shall confirm in writing to the Vendor and to
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ that the Vendor is unconditionally
entitled to the Purchase Price and all interest on its
investment. Any adjustment to be made between the parties
under clause 7.4 shall be ignored for the purposes of
Completion.
(b) The Purchaser shall pay to the Vendor by bank cheque interest
on the outstanding daily balance of the Purchase Price (with
the Deposit deemed paid for this purpose upon the Vendor
receiving the confirmation of the wire transfer under clause
5.6(b)) calculated daily from and including 1 April 1999 to
and including the Completion Date at the rate of 6.25% per
annum.
(c) The Purchaser shall authorise FR Services Ltd (ACN 057 490
883) (care of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇) in writing to deliver the
Data Room material into storage (with Brambles Australia
Limited trading as "Recall Total Information", or such other
person agreed and nominated in writing by the Vendor and the
Purchaser) under clause 7.6 on behalf of the Purchaser and to
issue instructions to the storage company in accordance with
clause 7.6; and
(d) If the terms of a distribution agreement have been agreed
under clause 4 prior to Completion, the Purchaser shall
execute and deliver to the Vendor that distribution agreement.
7.3 VENDOR'S OBLIGATIONS
On Completion, the Vendor shall confirm in writing that the Purchaser
may take possession and control of the Business and all of the Assets
and shall deliver to the Purchaser:
(a) (DELIVERY OF ASSETS) all of the Assets, title to which is
capable of passing by delivery, at the places where they are
located; and
(b) (BOOKS AND RECORDS) all books and records of the Business
(other than Excluded Records and records required by law to be
kept or maintained by the Vendor after Completion or which
relate to any business, asset or activity of the Vendor other
than the Business or Assets),
by way of allowing the Purchaser to occupy the Sites.
On Completion, the Vendor shall authorise FR Services Ltd (care of
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇) in writing:
(c) to deliver the Data Room material into storage (with Brambles
Australia Limited trading as "Recall Total Information", or
such other person agreed and nominated in writing by the
Vendor and the Purchaser) under clause 7.6 on behalf of the
Vendor
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and to issue instructions to the the storage company in
accordance with clause 7.6; and
(d) to deliver to the Purchaser the data medium containing the
source code delivered to FR Services Ltd under clause 2.6.
If, within 12 months after Completion, the Purchaser gives notice to
the Vendor identifying an Excluded Record and requesting its delivery,
the Vendor shall use reasonable efforts to locate the record and
provide a copy to the Purchaser.
7.4 ADJUSTMENT OF PURCHASE PRICE FOLLOWING MARCH ACCOUNTS
If the value of the net assets of the Business shown in the March
Accounts is less than the value of the net assets of the Business shown
in the December Accounts, the Vendor, within 7 days after the parties
receive the March Accounts, shall refund to the Purchaser, from the
amount received from the Purchaser at Completion, the amount of the
shortfall.
If the value of the net assets of the Business shown in the March
Accounts is greater than the value of the net assets of the Business
shown in the December Accounts, the Purchaser, within 7 days after the
parties receive the March Accounts, shall pay to the Vendor, as an
additional component of the Purchase Price, the amount of the excess.
7.5 LICENCE OF GREENSLOPES LICENSED AREA
(a) On Completion, the Vendor grants the Purchaser a licence to
occupy the Greenslopes Licensed Area and to use the fixtures
and fittings of the Vendor in the Greenslopes Licensed Area,
for a term of up to 6 months after Completion. The Purchaser
shall (and shall ensure all its employees and visitors) comply
with the Vendor's site and security rules advised to the
Purchaser from time to time in respect of the building in
which the Greenslopes Licensed Area is located. If the
Purchaser decides to cease to use the Greenslopes Licensed
Area before the end of the 6 month licence period, it shall
give notice to the Vendor. The Purchaser shall make good any
damage the Purchaser causes to the Greenslopes Licensed Area
or the building in which it is located or to fixtures and
fittings (other than the Assets) in that building. The
Purchaser shall reimburse the Vendor for the costs of all
services the Vendor provides, including electricity and
telephone charges. Where the Vendor is not able to precisely
determine those costs, the Vendor may make a reasonable
estimate of them and that estimate shall apply for the
purposes of this clause.
(b) From Completion, the Purchaser shall nominate a telephone
extension in the Greenslopes Licensed Area as its published
telephone number for general enquiries or calls to "switch",
with the intent that telephone calls to the Purchaser at
Greenslopes do not come through the Vendor's telephonists or
receptionists.
(c) Prior to Completion, the parties shall cooperate to plan the
smooth transition of the Business at the Greenslopes Licensed
Area and the use of facilities there; recognising the Vendor's
need to maintain the integrity and confidentiality of its
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business activities other than the Business. Immediately after
execution, the Vendor and the Purchaser shall each nominate
people to assist in the planning of that transition.
7.6 STORAGE OF DATA ROOM MATERIAL
After Completion, the Vendor and the Purchaser jointly shall place the
Data Room material in secure storage with a third party located in
Brisbane in the names of both the Vendor and the Purchaser. The Vendor
and the Purchaser jointly shall intruct the third party in writing:
(a) to securely store that material;
(b) except to the extent instructed to the contrary in writing by
the Vendor and the Purchaser, to allow access to that material
for review and copying (but not for removal from the storage
premises or withdrawal) by any entity comprising the Vendor,
the Purchaser and any person authorised in writing by an
entity comprising the Vendor or by the Purchaser;
(c) to maintain the material in secure storage until:
(i) the parties confirm in writing to the third party
(with a copy to each other) that the period in clause
9.4(b) has expired without reasonable particulars of
any Claim having been given to the Vendor; or
(ii) the parties confirm in writing to the third party
(with a copy to each other) that the Data Room
material may be delivered to the Purchaser.
If the Data Room materials are delivered to the Purchaser, the
Purchaser shall store them securely in Brisbane for a further 3 years
and allow the Vendor access to the records, on giving reasonable notice
to the Purchaser.The Vendor and the Purchaser shall share equally the
costs invoiced by the third party in respect of that storage. Each
party shall bear their own costs of accessing, reviewing or copying any
of the material.
8. NOTICE TO COMPLETE
8.1 NOTICE BY THE PURCHASER
If the Vendor fails to satisfy its obligations under clause 7.3 on or
before Completion, the Purchaser may give the Vendor a notice
specifying the relevant obligations and what is required to satisfy
them and requiring it to satisfy those obligations within 14 days after
the date of receipt of the notice. If the Vendor fails to satisfy those
obligations on the date specified in the Purchaser's notice, the
Purchaser, without affecting or limiting any other rights it might
have, may terminate this Agreement.
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8.2 TIME OF THE ESSENCE
Time is of the essence of the Purchaser's obligations under clause 7.2.
When a notice is given under clause 8.1, time shall be of the essence
of the Vendor's obligations under clause 8.1.
9. WARRANTIES - VENDOR
9.1 WARRANTIES BY THE VENDOR
The Vendor represents and warrants to the Purchaser in the terms set
out in Schedule 5.
9.2 EFFECTIVE DATES
The Warranties are given both as at the date of this Agreement and as
at the Completion Date, except that, where a Warranty is expressed to
be made as at another date or only one of those dates, the Warranty is
given with respect to that date only.
9.3 DISCLOSURES
Each Warranty is subject to any matter or transaction, whether
expressed or implied, that:
(a) is provided for or described in this Agreement;
(b) is disclosed in or ascertainable from the Disclosure Material;
(c) is disclosed to the Purchaser during the course of any
investigation it undertakes of the affairs of the Vendor or
the Business; or
(d) would have been disclosed to the Purchaser had the Purchaser
conducted searches prior to Completion of records open to
public inspection maintained by a Government Agency.
9.4 LIMITATION ON VENDOR'S LIABILITY
Notwithstanding any other provision of this Agreement, each of the
following applies:
(a) (MAXIMUM LIABILITY) the maximum aggregate liability of the
Vendor for any breach of this Agreement or under the
Warranties or for any other claim related directly or
indirectly to this Agreement, an Asset or the Business
(whether in contract, tort (including negligence), under
statute or otherwise) (each a CLAIM) will be limited to the
Purchase Price;
(b) (NOTICE OF CLAIMS) the Vendor will not have any liability in
respect of any Claim unless the Claim relates to facts or
circumstances arising before the end of 18 months after the
date of execution of this Agreement and reasonable particulars
of
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the Claim are given to the Vendor before the end of 2 years
after the date of execution of this Agreement;
(c) (POST COMPLETION ACTIONS) the liability of the Vendor in
respect of any Claim will be reduced or extinguished (as the
case may be) to the extent that the Claim has arisen directly
as a result of any conduct after Completion by the Purchaser;
(d) (CREDIT) if, after the Vendor has made a payment to the
Purchaser under a Claim, the Purchaser receives any benefit or
credit by reason of the matters to which the Claim relates,
then the Purchaser shall immediately repay to the Vendor a sum
corresponding to the amount of the payment or (if less) the
amount of the benefit or credit;
(e) (DISCLOSURES) the Vendor will not be liable in respect of any
matter or transaction to which a Warranty is subject under
clause 9.3;
(f) (THRESHOLDS) the Vendor will not have any liability in respect
of any Claim unless the amount of the Claim made against the
Vendor under this Agreement exceeds the sum of $100,000; and
(g) (CHANGE OF LAW OR INTERPRETATION) the Vendor will not be
liable to the Purchaser for any Claim:
(i) where the Claim is as a result of any legislation not
in force at the date of this Agreement, including
legislation which takes effect retrospectively; or
(ii) where the Claim is as a result of or in respect of a
change in the judicial interpretation of the law in
any jurisdiction after the date of this Agreement.
9.5 NO RELIANCE
The Purchaser acknowledges that:
(a) at no time has:
(i) the Vendor, or any person on the Vendor's behalf,
made or given; or
(ii) the Purchaser relied on,
any representation, warranty, promise or forecast except those
referred to in clause 9.1; and
(b) no other statements or representations:
(i) have induced or influenced the Purchaser to enter
into this Agreement or agree to any or all of its
terms;
(ii) have been relied on in any way as being accurate by
the Purchaser;
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(iii) have been warranted to the Purchaser as being true;
or
(iv) have been taken into account by the Purchaser as
being important to the Purchaser's decision to enter
into this Agreement or agree to any or all of its
terms.
Without limiting the foregoing, the Purchaser acknowledges that neither
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ nor any other employee or advisor of the Vendor
(including Bankers Trust Australia Limited, ▇▇ ▇▇▇▇▇▇▇▇▇▇,
PricewaterhouseCoopers, ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and their respective
employees and agents) had authority prior to this Agreement to bind the
Vendor in relation to a transaction in this Agreement or to make any
statement, representation or promise on behalf of the Vendor. The
Purchaser acknowledges that it has not relied on statements,
representations or promises by such persons and that any such
statements, representations or promises are not represented or
warranted (except to the extent expressly set out in this Agreement)
and that the Purchaser has made and relied on its own assessment of the
Disclosure Material and other information it ascertained about the
Business.
9.6 TRADE PRACTICES ACT
To the extent permitted by law, the Purchaser agrees not to make and
waives any right it may have to make any claim against the Vendor or
any of its officers, employees, agents or advisers under Part V of the
Trade Practices ▇▇▇ ▇▇▇▇, or the corresponding provision of any State
or Territory enactment.
9.7 DEALING WITH WARRANTY BREACH AFTER COMPLETION
If the Purchaser becomes aware after Completion of any circumstances
which constitute or could (whether alone or with any other possible
circumstances) constitute a breach of any Warranty, including a claim
against the Purchaser which if satisfied would result in a Claim, the
Purchaser must do each of the following:
(a) promptly give the Vendor full details of the circumstances and
any further related circumstances of which the Purchaser
becomes aware;
(b) without limiting paragraph (c) below, take reasonable steps to
mitigate any loss which may give rise to a claim against the
Vendor for breach of any Warranty;
(c) not make any admission of liability, agreement or compromise
with any person in relation to the circumstances without first
consulting with and obtaining the written approval of the
Vendor, such approval not to be unreasonably withheld;
(d) give the Vendor and its professional advisers reasonable
access to:
(i) the personnel and premises of the Purchaser; and
(ii) relevant chattels, accounts, documents and records
within the power, possession or control of the
Purchaser,
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to enable the Vendor and its professional advisers to examine
the circumstances, premises, chattels, accounts, documents and
records and to take copies or photographs of them at their own
expense; and
(e) at the Vendor's expense, take all action in good faith and
with due diligence that the Vendor directs to avoid, remedy or
mitigate the breach, including legal proceedings and
disputing, defending, appealing or compromising the claim and
any adjudication of it.
9.8 PROCEEDINGS IN RESPECT OF A CLAIM
Any Claim by the Purchaser will (if not previously satisfied, settled
or withdrawn) be taken to be waived or withdrawn and will be barred and
unenforceable on the first anniversary of the date the Claim is made
unless proceedings in respect of the Claim have been commenced against
the Vendor. Proceedings will not be taken to be commenced unless they
have been both issued and served on the Vendor.
9.9 REDUCTION OF PURCHASE PRICE
Any monetary compensation received by the Purchaser as a result of any
breach by the Vendor of any Warranty shall be in reduction and refund
of the Purchase Price.
9.10 NOTIFICATION OF WARRANTY BREACH BEFORE COMPLETION
If on or before Completion the Purchaser becomes aware of any breach or
potential breach of any Warranty, the Purchaser must:
(a) notify the Vendor of this; and
(b) allow the Vendor a reasonable opportunity to remedy the breach
or potential breach.
If the Vendor determines in its discretion that it is unable to remedy
it or if the Purchaser does not give notice to the Vendor either:
(c) accepting the result as a remedy and waiving any such breach
or potential breach; or
(d) acknowledging that the maximum potential liability of the
Vendor to the Purchaser in relation to the breach or potential
breach will not exceed $50,000 in any circumstance,
the Vendor may terminate this Agreement by giving notice to the
Purchaser. If the Vendor does not terminate this Agreement, that shall
not be taken as an admission of liability or of the matters claimed by
the Purchaser.
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10. WARRANTIES - PURCHASER
The Purchaser warrants, both at the date of this Agreement and at
Completion, that:
(a) it has the power and authority to execute this Agreement and
perform and observe all its terms without the consent of any
person; and
(b) this Agreement has been duly executed by the Purchaser and is
a legal, valid and binding agreement of the Purchaser
enforceable against it in accordance with the terms of this
Agreement.
11. EMPLOYEES
11.1 [NOT USED]
11.2 VENDOR'S TERMINATION OF EMPLOYMENT
The Vendor, on and with effect from the Completion Date in consultation
with and in a manner reasonably acceptable to the Purchaser, shall
terminate the employment of all Transferring Employees.
11.3 PURCHASER'S OFFER OF EMPLOYMENT
(a) Before close of business on Friday 9 April 1999 (or such other
date the parties agree in writing), the Purchaser, using
substantially the form of letter in Annexure "F" or such other
form as the parties agree in writing, shall offer each
Employee employment with the Purchaser, with effect from and
conditional on Completion, on terms and conditions equivalent
to their current employment (including, in relation to
entitlements on termination by the Purchaser for redundancy,
recognition of the length of time employed with an entity
comprised in the Vendor); with the intent that the total value
of the package offered is no less than the total value of the
Employee's package with the Vendor. The Purchaser shall not do
anything to discourage any Employee from accepting employment
with the Purchaser. The Purchaser acknowledges that, to the
extent a benefit described in Annexure "G" applies in respect
of an Employee in a particular country, the offer to the
Employee shall compensate for benefits to an equivalent value.
(b) The Purchaser acknowledges that a number of Employees have
Mincom share options and would be interested in finding out
about the Purchaser's employee stock option arrangements. The
Purchaser will make known to Employees, as part of the offer
process, the particulars of its employee stock option scheme,
eligibility criteria and general practices (but without any
obligation to offer stock options to the Employees in those
offers).
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(c) If the Purchaser's offer to an Employee is not in accordance
with this clause 11.3 and the Vendor terminates that person's
employment, the Purchaser shall pay to the Vendor on demand
the amount of the redundancy entitlement of that person.
(d) If the Purchaser's offer to an Employee is in accordance with
this clause 11.3, the Employee does not accept the Purchaser's
offer and the Vendor terminates that person's employment, the
Purchaser shall not have any responsibility under this
Agreement in respect of any redundancy entitlements of that
person. To the extent the March Accounts include a provision
in respect of all or part of such a redundancy entitlement (as
evidenced by the working papers for those accounts), the
Purchaser shall pay to the Vendor the amount of that provision
within 7 days after the March Accounts are received.
11.4 TRANSFERRING EMPLOYEES
The Vendor shall pay to each Transferring Employee on the Completion
Date (with any necessary adjustment being made in the March Accounts):
(a) accrued salary, wages, sales commissions and bonuses as at
that date (which includes any bonus entitlement payable on or
before 30 June 1999 under terms and conditions applying
between the Vendor and the Employee at the date of this
Agreement); and
(b) any entitlements for accrued but untaken annual leave as at
that date other than those which the Transferring Employees
agree to be transferred for their benefit under their
employment with the Purchaser.
11.5 PURCHASER'S OBLIGATIONS FOR ACCRUING ENTITLEMENTS
Except for any entitlements paid to Transferring Employees under clause
11.4(b), the Purchaser shall:
(a) with effect from Completion assume liability for the long
service leave, annual leave and sick leave entitlements of the
Transferring Employees; and
(b) indemnify the Vendor against all liability in respect of such
entitlements.
12. CONTRACTS
12.1 NOVATION TO THE PURCHASER
Each party shall use reasonable endeavours to ensure the novation of
each of the Contracts to the Purchaser no later than 6 months after the
Completion Date. Without limiting the previous sentence, immediately
after execution of this Agreement, the parties shall together do all
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reasonable things to obtain the consent of Petrosystems S.A. to have
the CGG Agreement novated to the Purchaser.
The Purchaser accepts the Vendor's performance of clause 12.1 and the
agency, subcontract and delegation described in paragraphs (a) and (b)
of clause 12.2 as the entire obligation and liability of the Vendor to
the Purchaser in relation to the Contracts (other than a liability
under clause 9).
12.2 WHERE NOVATION IMPOSSIBLE
(a) This clause 12.2 applies if, on or before the Completion Date,
a request under clause 12.1 has not been made or any person
refuses or fails to give its consent to the novation of any
Contract (where the consent of that person is necessary). The
Vendor shall do the following in relation to a Contract:
(i) duly perform the Contract through the Purchaser as
the Vendor's agent or by subcontracting the work
involved to the Purchaser on the same terms as those
in the Contract ;
(ii) delegate management of performance of the Contract to
the Purchaser if it is reasonably possible to do so;
(iii) at the expense of the Purchaser, enforce the Contract
against the other party or parties to it in the
manner that the Purchaser reasonably directs from
time to time; and
(iv) not agree to any amendment of the Contract or waiver
of the Vendor's rights without first obtaining the
written approval of the Purchaser, such approval not
to be unreasonably withheld.
(b) The Purchaser shall perform the agency, delegation and
subcontract described in clause 12.2(a). If it is not legally
permissible under a Contract for the Purchaser to perform the
Contract as agent for the Vendor or for the Vendor to perform
the Contract by appointing the Purchaser as subcontractor, the
Purchaser nevertheless shall use all reasonable efforts:
(i) to perform the Contract for the Vendor;
(ii) to overcome any objection the other party to the
Contract may have to such performance; and
(iii) to obtain the other party's consent to the novation
of the Contract to the Purchaser.
(c) If, despite the Purchaser's reasonable efforts, the other
party to the Contract will not accept the Purchaser's
performance and will not consent to the novation of the
Contract to the Purchaser, the Purchaser's indemnity in
paragraphs 12.3 (b), (c) or (d) does not apply to the extent
the Purchaser is so prevented from performance.
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However, for a Contract in the nature of a distribution
agreement, if the Vendor reasonably believes this clause
12.2(c) may apply, it may give notice to the Purchaser
(TRIGGER NOTICE). If a trigger notice is given and the Vendor
has discussed the notice with the Purchaser, then the Vendor
may offer in writing to the distributor to extend the
denouement period under the Contract until the date of expiry
of the Contract (assuming for that purpose the Contract would
run its full term). The Vendor agrees not to discuss with the
distributor an extension of the denouement period in these
circumstances unless the Vendor has first discussed with the
Purchaser a trigger notice in respect of that distributor.
(d) If ACS Laboratories does not consent to the novation of the
agreement with Mincom Limited dated 22 December 1997 (in
respect of "CorEval"), the Vendor, at the Purchaser's expense,
shall exercise any rights it has under that Contract in
respect of granting licences of CorEval as reasonably directed
by the Purchaser.
12.3 PURCHASER'S INDEMNITY
The Purchaser shall indemnify the Vendor against all claims and
liabilities of any nature (including costs on a full indemnity basis,
whether or not the subject of a court order) brought against or
suffered by the Vendor in connection with or incidental to:
(a) any breach or non performance by the Purchaser after
Completion of any Contract novated to the Purchaser under
clause 12.1;
(b) any breach or non performance by the Vendor after Completion
of any Contract to which clause 12.2 applies occurring due to
conduct by the Purchaser;
(c) any breach or non performance by the Purchaser of any
sub-contract referred to in clause 12.2;
(d) any act or omission of the Purchaser as agent of the Vendor in
relation to a software maintenance agreement or any other
Contract which the Purchaser is required to perform as agent
of the Vendor; or
(e) an undertaking given under clause 28.1.
12.4 VENDOR'S INDEMNITY
The Vendor shall indemnify the Purchaser against all claims and
liabilities of any nature (including costs, whether or not the subject
of a court order) brought against or suffered by the Purchaser at any
time in connection with or incidental to any breach or non performance
by the Vendor of any Contract occurring on or before Completion.
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13. CREDITORS, MARCH ACCOUNT LIABILITIES AND RECEIVABLES
13.1 PURCHASER'S OBLIGATIONS FOR POST-COMPLETION CREDITORS
The Purchaser will be responsible for debts incurred by it in the
course of the Business after Completion.
13.2 MARCH ACCOUNT LIABILITIES
Subject to Completion occurring, the Purchaser, on and from 1 April
1999:
(a) assumes from the Vendor all March Account Liabilities and will
discharge them in the ordinary course of business; and
(b) will keep the Vendor indemnified in respect of a March Account
Liability and the Purchaser's performance or non-performance
of clause 13.2(a).
If the Vendor prior to Completion discharges a March Account Liability,
it will give notice of that to the Purchaser and the Purchaser will
reimburse the Vendor within 7 days after Completion.
13.3 VENDOR TO REMIT RECEIVABLES
As soon as reasonably practicable after Completion, the Vendor shall
give notice to debtors to whom the Receivables relate that the debt
owed to the Vendor has been assigned to the Purchaser and that the
debtor should now account to the Purchaser in relation to the relevant
Receivable. If the Vendor, after Completion, receives money on account
of a Receivable the Vendor shall remit that amount to the Purchaser (in
the same country in which the Vendor received the amount) during the
month following the month of its receipt. If an amount received, after
checking with the debtor, cannot be identified as relating to a debt
included in the Receivables or an amount owing to the Vendor (in this
clause called the OTHER DEBT), that amount shall be taken to relate to
the other debt and any amount remaining after payment of the other debt
will be taken to relate to the Receivable. This clause 3.3 and clause
5.1(b)sets out the entire obligation and liability of the Vendor in
relation to the Receivables.
14. ADJUSTMENTS
On Completion the Purchaser shall pay to the Vendor an amount equal to
the prepayments made by the Vendor before Completion on goods, services
or other benefits in respect of the Business which will be received by
the Purchaser in respect of the Business after the Completion Date
which, are not recognised as prepayments in the March Accounts. These
include prepayments of the following:
(a) deposits, rent and outgoings on the Leasehold Property;
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(b) gas, electricity, water and telephone charges relating to the
Business; and
(c) any similar charges to the Business agreed in writing between
the Vendor and the Purchaser.
15. ACCESS TO RECORDS AND EMPLOYEES AFTER COMPLETION
15.1 RECORDS
After the Completion Date:
(a) the Purchaser shall keep the books, records and other
documents relating to the Business delivered to the Purchaser
on Completion; and
(b) the Vendor shall keep the Excluded Records and the books,
records and other documents relating to the Business required
to be kept or maintained by the Vendor,
for seven years from the date of the creation of the relevant document.
Each party shall permit the other party to have access to those books,
records and documents during business hours as the other party
reasonably requires.
15.2 EMPLOYEES
After the Completion Date, the Purchaser shall allow the Vendor and its
representatives reasonable access, (for a period of one year from
Completion on reasonable notice to the Purchaser and for the purposes
described in this clause 15.2), to employees of the Vendor who become
and continue to be employees of the Purchaser to enable the Vendor and
its representatives to obtain details on any matters within the
knowledge of those employees which may be relevant to any claim made
under clause 9 or 12.4.
16. NOTICES
Any notice given under this Agreement:
(a) must be in writing addressed to the intended recipient at the
address shown below or the address last notified by the
intended recipient to the sender:
THE VENDOR:
Mincom Limited
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
28
MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
THE PURCHASER:
Paradigm Geophysical Limited
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.B 206
Herzlia B, ISRAEL
Attention: Chief Executive Officer
Fax: ▇▇▇▇-▇▇▇-▇-▇▇▇ 3016
(b) must be signed by a person duly authorised by the sender
(which in the case of the Vendor, may be someone authorised by
Mincom Limited); and
(c) will be taken to have been given when delivered, received or
left at the above address. If delivery or receipt occurs on a
day when business is not generally carried on in the place to
which the communication is sent or is later than 4 pm (local
time) it will be taken to have been duly given at the
commencement of business on the next day when business is
generally carried on in that place.
17. NO DISCLOSURE
17.1 CONFIDENTIALITY
Subject to clause 17.4, each party shall keep the terms of this
Agreement confidential.
17.2 PURCHASER'S INVESTIGATION
Subject to clause 17.4, the Purchaser must keep any Confidential
Information in the Disclosure Material confidential:
(a) until Completion; and
(b) on and after Completion Date, if Completion does not occur.
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17.3 POST COMPLETION - VENDOR
From Completion, the Vendor shall keep confidential all Confidential
Information (whether in writing or otherwise) of the Business remaining
in its possession or control (if any).
17.4 EXCEPTIONS
A party may make any disclosures in relation to this Agreement as it
thinks necessary to:
(a) its professional advisers, bankers, financial advisers and
financiers, if those persons undertake to keep information
disclosed confidential;
(b) comply with any applicable law or such order of a court of
competent jurisdiction; or
(c) any of its employees to whom it is necessary to disclose the
information if that employee undertakes to keep the
information confidential.
17.5 PUBLIC ANNOUNCEMENTS
Except as required by applicable law or order of a court of competent
jurisdiction, all press releases and other public announcements
relating to the transactions dealt with by this Agreement must be in
terms agreed by the parties.
17.6 CONFIDENTIALITY AGREEMENT UNAFFECTED
If the Purchaser has entered into any separate agreement to keep
confidential the Confidential Information of the Vendor or the
Business, nothing in this clause shall limit or otherwise affect the
terms of that agreement.
18. FURTHER ASSURANCES
Each party shall take all steps, execute all documents and do
everything reasonably required by the other party to give effect to any
of the transactions contemplated by this Agreement.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with
respect to its subject matter. It constitutes the only conduct relied
on by the parties (and supersedes all earlier conduct by the parties)
with respect to its subject matter. Except as set out in this
Agreement, there are no representations or warranties that have been
relied on by the Purchaser in entering into this Agreement.
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PETROLEUM TECHNOLOGY DIVISION Page 26
20. AMENDMENT
This Agreement may be amended only by another agreement executed by all
parties who may be affected by the amendment.
21. ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, charged or otherwise dealt with, and
no party shall attempt or purport to do so, without the prior written
consent of all parties.
22. NO WAIVER
No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement will operate as a waiver. Nor will any
single or partial exercise of any right, power or remedy preclude any
other or further exercise of that or any other right, power or remedy.
23. NO MERGER
The rights and obligations of the parties will not merge on Completion.
They will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any transaction
under this Agreement.
24. STAMP DUTY AND COSTS
Each party shall bear its own costs arising out of the preparation of
this Agreement but the Purchaser shall bear any stamp duty (including
fines and penalties) chargeable on this Agreement, on any instruments
entered into under this Agreement, and in respect of a transaction
evidenced by this Agreement. The Purchaser shall indemnify the Vendor
on demand against any liability for that stamp duty (including fines
and penalties).
25. GOVERNING LAW
This Agreement is governed by the laws applying in Queensland. The
parties submit to the non-exclusive jurisdiction of the courts
exercising jurisdiction there.
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26. LIMITED RESTRAINT OF TRADE
26.1 The Vendor agrees that it will not:
(a) carry on a business or activity of a type the same or
substantially the same as the Business; or
(b) carry on a business or activity of a type which is competitive
with (or potentially competitive with) the Business;
for a period of five years from the date of Completion.
26.2 Nothing in clause 26.1 shall affect a right of the Vendor under another
agreement with the Purchaser (including the distribution agreement
entered into under clause 4) or under clause 17 or the Vendor's ability
to sell, market, use, distribute, supply, maintain, enhance or develop
software products other than the Software or otherwise conduct its
other business operations, including in relation to the following
software as it is developed from time to time (by whatever name it is
called from time to time):
(a) Minescape;
(b) Link One;
(c) ▇▇▇▇ Open Enterprise;
(d) ▇▇▇▇ Open Extender;
(e) ▇▇▇▇ ▇▇; and
(f) MineWorks.
26.3 The parties agree that any activity outside the geophysical and
petrophysical industries is not competitive with the Business for the
purposes of clause 26.1.
27. LICENCE OF GDB DISPLAY MECHANISM
27.1 The Intellectual Property referred to under clause 5.1(e) includes
intellectual property rights in a GDB display mechanism. The GDB
display mechanism forms part of the Software.
27.2 The Purchaser agrees and acknowledges that the GDB display mechanism
also forms part of certain software owned by the Vendor that is not the
subject of this Agreement.
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PETROLEUM TECHNOLOGY DIVISION Page 28
27.3 Despite clause 27.1, the Purchaser grants to the Vendor a non
exclusive, perpetual, royalty free licence to use, modify, enhance and
reproduce:-
(a) the GDB display mechanism and all related technical and user
documentation; and
(b) any and all modifications, additions and enhancements made to
the GDB display mechanism or to any related technical and user
documentation, by or on behalf of the Purchaser,
in relation to the Vendors' "Minescape" product (by whatever name it is
called from time to time) and agrees and acknowledges that any actions
of the Vendor under this clause will not amount to a breach of clause
26.1.
27.4 The rights granted in the previous clause include a right to sublicense
or authorise others to do anything the Vendor may do.
27.5 The benefit of the escrow arrangement described in item 3 of Schedule 8
and assumed by the Purchaser under clause 28.1 shall extend to the
Vendor in respect of the Source Material for the GDB display mechanism.
In addition, the Vendor shall be entitled to possession of the Source
Material for the GDB display mechanism if the Purchaser gives notice of
intention to cease (or does cease, with or without notice) to provide
support services under clause 27.6.
27.6 After Completion the parties shall seek to agree an arrangement under
which the Purchaser shall provide software support services to the
Vendor and its delegates and licensees in respect of the GDB display
mechanism for a reasonable annual maintenance fee (but no more than the
Purchaser generally charges other customers in relation to such
services).
27.7 If the parties do not execute such an agreement within 1 month after
Completion, or, at the Purchaser's election, at any time thereafter on
6 months notice to the Vendor, the Purchaser shall provide to the
Vendor the source code for the GDB display module and offer to make
Transferring Employees available to the Vendor to train employees of
the Vendor to enable the Vendor to maintain and support the GDB display
module. If the Purchaser performs this clause 27.7, it shall have no
further obligation under clauses 27.6 or 27.8 or an agreement entered
into under clause 27.6 (subject to the terms of such an agreement).
27.8 Negotiations for the agreement described in clause shall seek to
include the spirit of the following elements of software support:
(a) Correction of any faults or defects in the software, in as
short a time as is reasonably possible, to maintain the
software in good working order;
(b) Advice on request about the anticipated time required to
resolve a fault or defect reported to the Purchaser;
(c) Provision of fixes and corrected object code related to all
errors in the software;
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 29
(d) Information and user and technical documentation in electronic
form in relation to such fixes and corrections;
(e) Provision of workarounds to enable continued use of the
software until a permanent fix is provided;
(f) Supply of all updates and general new releases of the software
and generally releases upgrades to existing functionality from
time to time and reasonable training in relation to these,
their use and installation;
(g) On request, the provision of answers to queries about fixes,
corrections, updates, new releases, workarounds, enhancements
and upgrades ;
(h) Telephone support hotline and facsimile and email support for
the services described in this clause 27.6, on a 24 hours, 365
day basis;
(i) Registration of software maintenance requests and maintenance
of records about each request and the actions taken to resolve
the request;
(j) The provision of monthly reports on the status of each request
for the correction of faults and defects, including details of
any faults or defects resolved during the month and the work
and time required to resolve any remaining requests; and
(k) The provision of a reasonable opportunity to review any user
requirements statement or specification for an amendment or
upgrade to the software which is intended to be made generally
available to licensees.
28. ESCROW AGREEMENTS
28.1 Immediately after execution of this Agreement (and before Completion)
the Purchaser shall give notice (in terms agreed in writing by the
Vendor):
(a) to each person the Vendor has licensed to use the Software or
Third Party Software covenanting (subject to Completion
occurring) to assume and perform all obligations of the Vendor
under an Escrow Agreement relevant to that licensee and
offering to be substituted for the Vendor under those
agreements; and
(b) to each escrow agent under an Escrow Agreement covenanting
(subject to Completion occurring) to perform the Vendor's
obligations under the agreement as if named in the agreement
in the place of the relevant Vendor entity.
28.2 The Purchaser shall provide to the Vendor a copy of each notice under
clause 28.1 and a copy of any replies received.
28.3 Nothing in clause 28.1 limits clause 12.
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29. TERMINATION OF HEADS OF AGREEMENT
The Heads of Agreement between Mincom Limited and the Purchaser
executed on 28 March 1999 is hereby terminated.
EXECUTED as an Agreement
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PETROLEUM TECHNOLOGY DIVISION Page 31
SCHEDULE 1
LEASEHOLD PROPERTIES
CANADA
Premises: Suite 1280, Aquitaine Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (914 square feet)
Lessor: First Real Properties Limited
Lessee: Mincom Inc, incorporated in Alberta, Canada
Date: 2 October 1998, amended by agreement dated 27 October 1998
Term: 3 years 11 months commencing 1 November 1998 and ending 30
September 2002
Rental: Base rental of C$13,125 per annum
Deposit: C$3,576.48
UNITED KINGDOM
Winchester: Lease
Premises: ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇: Sun Alliance & London Assurance Company Limited
Lessee: Mincom Services Pty Limited (ACN 080 047 945)
Date: Undated (but authorised by the Winchester County Court 13 May
1998)
Term: 1 April 1998 to 31 March 1999, but terminable on 2 months
notice by either party
Rental: pound sterling 650 per month (plus VAT) in advance
Deposit: pound sterling 300
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 32
Aberdeen: Sublease
Premises: Floor 2, office suite, 13 Bon Accord Square, Aberdeen
(79.05m2) plus 2 car parks
Sublessor: Cornhill Insurance Limited
Sublessee: Mincom Services Pty Limited (ACN 080 047 945)
Date: Registered 6 April 1998
Term: Until 30 October 2006 and from month to month thereafter until
terminated by 1 months notice by either party, but terminable
by Mincom from 9 March 2003 on 6 month written notice.
Rental: pound sterling 10,565 per annum (plus VAT), reviewable on each
date specified in the Head Lease for review of the rent
payable by the Principal Tenants under the Head Lease, and in
any event reviewable on 1 November 2001. Initial 3 months rent
free. In the event that the sublease is not terminated by
Mincom on 9 March 2003, a further rent free period of 2 months
(from 9 March 2003) will apply.
UNITED STATES OF AMERICA
Premises: First floor, ▇▇▇▇▇ ▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (5654 square
feet), plus 22 car parks
Lessor: Ashford/In Site, L.P., a Texas limited partnership (purchased
from original landlord, CB Institutional Funds V1, a
Californian limited partnership).
Lessee: Mincom Inc (USA)
Date: August 14, 1991 (amended by First Addendum dated 14 August
1991, Second Addendum dated 18 August 1992, Third Addendum
dated 11 December 1996 and a Commencement Date Agreement dated
21 May 1997).
Term: Ending April, 14 2002 (Commencement Date Agreement). Tenancy
month to month if hold over after expiry with consent of
landlord.
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PETROLEUM TECHNOLOGY DIVISION Page 33
Rental: US $5,418.42 per month
Deposit: US $4,924.41
38
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PETROLEUM TECHNOLOGY DIVISION Page 34
SCHEDULE 2
INTELLECTUAL PROPERTY
1. Copyright, and all other intellectual property rights of the Vendor, in
the original form of the Software and all modifications, additions and
enhancements made by the Vendor and other works comprised in or
marketed with the Software (other than the Third Party Software) - in
both source and object code forms.
2. The following unregistered trade marks in relation to the Software and
the Third Party Software:
2.1 Geolog;
2.2 Drill bit device shown in Annexure "B" (but without the
letters "PTM");
2.3 GeologWorks;
2.4 GeologFrame; and
2.5 PTM.
3. Copyright in the Vendor's user documentation concerning the Software.
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SCHEDULE 3
PLANT AND EQUIPMENT
PART A: AUSTRALIAN FIXED ASSETS
MACHINE
NEC Monitor WX ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ GDM ▇▇▇▇▇
▇▇▇ Indy
Sun Ultra ▇▇▇▇▇ ▇
▇▇▇ Indy
SGI Octane
SGI Octane
SGI Indy
SGI Indigo
Sun Ultra ▇▇▇▇▇ ▇
▇▇▇ Indy
Digital
Sun Sparc station
SGI Indy
SGI Indy
SGI Indy
SUN Ultra HPC 450 Server
PCS
MACHINE
Dell Poweredge 2300
Acer
Acer
Gateway 2000
Toshiba Laptop
Western Computer
Toshiba Laptop
Dell Laptitude Laptop
Dell Laptitude Laptop
Dell Laptitude Laptop
Dell Laptitude Laptop
Dell Workstation 400
Dell Laptitude Laptop
Dell Laptitude Laptop
Dell Laptitude Laptop
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MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 36
PRINTERS
MACHINE DESCRIPTION
Ps (Phaser 560) Printer Tektronics Phaser 560 extended
Mx Printer HP 4SI - Model No C2000A
HP Laserjet Printer HP 5N Model No C3952A
HP755CM Printer HP 755cm
OTHER MACHINES
MACHINE DESCRIPTION
Zip Device Iomega
CDE100 Yamaha
Sun CD Rom Sun
SGI CD Rom SGI
Exa Byte Tape Device Third Party
Dat Tape HP
Dat autoloader HP Autoloader
External Disc Third Party
External Disc Third Party
External Disc Third Party
External Disc Third Party
Disc
External Third Party
Scanner Epson GT -8000
Switch 3300 3Com
MACHINE DESCRIPTION
HP Scan Jet 5s HP 5s
CD Duplicator Media Form
Model: VPL-X600M Sony LCD Projector
Model: Smart UPS400 APC Smart UPS
Model: Smart UPS420 APC Smart UPS
Model: Smart UPS 620 APC Smart UPS
Model: Smart UPS2200 NET APC Smart UPS
Fax Machine Xerox
Photocopier - Xerox Vivace
Sony Digital Mavrica Camera Sony MVC-FD7
MOBILE PHONE
Machine
Nokia 8110I
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Xterm Acer Monitor NCD Xterm
Xterm
42
MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 38
PART B: US FIXED ASSETS
COMPUTERS
Tape Drive Interface
Sun ▇▇▇▇▇ ▇▇ Mod
Nutcracker X/DKV.1
4/8 ▇▇ ▇▇▇ Data Tape
Internet Devices #3973
EQUIPMENT
Adtran Cisco Serv16 (Hubs)
Category 5 Cables/Vo
Dataequp Circuit Bd
AFS2000 1/Telecom M
OFFICE FURNITURE
Laminating Doors,Conf Tabl&Storage
Conf Room TV & VCR
FURNITURE
Desk
Credenza
Bookcase
Lateral File Cabinet
Highback Chair
2 Side Chairs
CRT w/Casters
4 Shelf Bookcase
Side Chair
72x36 Executive Desk
72x22 Credenza
High Back Chair
Trade Show Booth
Office Furniture
Office Furniture
Desk/Credenza/Chairs
Furniture
Bookshelves
Booth Improvement
▇▇▇▇▇▇▇ Off Furn
Infocus LP730 V/Z
IMPROVEMENTS
Electrical Work Houston
OFFICE EQUIPMENT
43
MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 39
Phone Sys AT&T
Comm Equip AT&T
3 Open Bookcases
TERMINALS AND PC'S
Compaq Computer
SCSI Subsystem
Toshiba Tecra 700
Toshiba Tecra CDRom
Mega 28.8 Eth + Mode
Projector/Litepro
Intel Pent 200MMX/MS
TechMedia 1280X1024
Intel Pent 200MMX/SDCD
Software Licenses
Inv/Timesheet Software
Gateway Computer
Gateway Computer
SUN Ultra 10
44
MINCOM AND PARADIGM
PETROLEUM TECHNOLOGY DIVISION Page 40
PART C: CANADIAN FIXED ASSETS
DESCRIPTION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ O2 0800690C2356
Exabyte Tape Drive
Epson stylus 3KDX011326
COMPUTER HARDWARE
Lucent Phones 98SP53122326
Fax Maching Brother C81961664
COMMUNICATION EQUIPMENT
Terminals & PCs (HUB)
32KB RAM T400 Series
Toshiba Computer 12514129
Compac Computer
HP Laserjet Printer USBB046812
Terminals & PCs (17' monitor)
Dell Laptop Z369M
Sage US Software (Timesheets)
Ascot Computer 980362
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MINCOM AND PARADIGM
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PART D: UK FIXED ASSETS
---------------------------
DESCRIPTION
COMPUTER EQUIPMENT - 013200
---------------------------
4.8GB DAT Tape
▇ ▇▇▇▇▇ exp - CDROM
Hard Disk for SGI
Dell PC
Additional 32Mb RAM
8mm Exabyte Tape Drive
Floptical Drive
Toshiba P13 161.4 440CDX + RAM Upgrade
SGI ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇
New Docking Bay for Laptop
ZIP Drive 100Mb
PICO Mobile Ambassador
External 5/7 ▇▇ ▇▇▇ Tape Drive
HPC450C A1 Plotter, 16Mb Memory
Latitude CP MT Workstation
C6069A Legs - HP450C
02 Workstation 200MHz R5000
02 Workstation 200MHz R5000
02 Workstation 200MHz R5000
02 Workstation 200MHz R5000
02 Workstation 195MHz R10000
▇▇-▇▇▇-▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ Part No HU-M64A 64Mb Kit
ONC3FNFSfor IRIX 6x
Dell Latitude CP233XT 64Mb
Dell Latitude CP233XT 64Mb
D-Link DE1824 2port
MIPSpro F90 Compiler
ONC3/NFS 5 r-t-u
Internal 9 Gb SCSI Option Disk
Internal 9 Gb SCSI Option Disk
Dell XPS R350 440BX PII PC
R350 Pentium II computer
Carrera Computer System
C Port Replicator + AC
Dual Channel Display Board
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OFFICE EQUIPMENT - 013500
-------------------------
Filing Cabinet * 2 + 4 chairs
Fax Machine Fax/Printer/Copier
NOBO 499 O/head Projector
Sasco Wall Screen 70*70 43022
Refrigerator
Company Signage
Plain paper fax machine
Krome PABX Mastering Unit
OFFICE FURNITURE - 013600
-------------------------
Furniture Advances
TV/Microwave
Furniture Advances
C ▇'▇▇▇▇▇▇ elect appl.
Ostaline 4Dwr Filing Cabinet
Ostaline 4Dwr Filing Cabinet
Astral 1600 R/H Crescent Desk
Astral 1600 R/H Crescent Desk
Astral 1600 R/H Crescent Desk
Astral 1600 R/H Crescent Desk
Astral 1600 R/H Crescent Desk
Astral ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ 800 Crescent Return Unit
Astral 800 Crescent Return Unit
Astral 800 Crescent Return Unit
Astral 800 Crescent Return Unit
Astral Mobile Desk 3D High Ped
Astral Mobile Desk 3D High Ped
Astral Mobile Desk 3D High Ped
Astral Mobile Desk 3D High Ped
Ostaline 2Dwr Filing Cabinet
Ostaline 2Dwr Filing Cabinet
Ostaline 2Dwr Filing Cabinet
Ostaline 2Dwr Filing Cabinet
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MINCOM AND PARADIGM
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▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
▇▇▇▇▇ PT Tlt High Back Chair
Table 48"x24"x28" Oak Galaxy
Bookcase Galaxy Open Front
Bookcase Galaxy Open Front
Bookcase Galaxy Open Front
▇▇▇▇▇ Anti-Static Mat 48"x53"
City Desk 1750mmx1000mm
City Desk 1750mmx1000mm
Senator CA2418 Boardroom Table
Vertical Blinds to Windows
48
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SCHEDULE 4
[NOT USED]
49
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SCHEDULE 5
WARRANTIES
(refer to clause *9.1)
1. ACCURACY OF INFORMATION
With respect to the Disclosure Material:
(a) copies of documents provided are true copies; and
(b) the Disclosure Material is not intentionally misleading in any
material respect (whether by the inclusion of misleading
information or the omission of material information or both).
2. POWER
The Vendor has the power and authority to execute this Agreement and
perform and observe all its terms without the consent of any person
except as indicated in this Agreement or the Disclosure Material. This
Agreement has been duly executed by the Vendor and is a legal, valid
and binding agreement of the Vendor enforceable against it in
accordance with the terms of this Agreement. The Vendor has all
consents and approvals of relevant Governmental Agencies to conduct the
Business.
3. SOLVENCY
3.1 (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.) None of the
following has occurred and is subsisting, or so far as the Board is
aware, is threatened in relation to the Vendor:
(a) the appointment of an administrator;
(b) any step taken (including an application or order made,
proceedings commenced, a resolution passed or proposed in a
notice of meeting) for:
(i) the winding up, dissolution, or administration of the
Vendor, or
(ii) the Vendor entering into an arrangement, compromise
or composition with or assignment for the benefit of
its creditors or a class of them;
(c) the Vendor:
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MINCOM AND PARADIGM
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(i) being (or taken to be under applicable legislation)
unable to pay its debts, other than as the result of
a failure to pay a debt or claim the subject of a
good faith dispute; or
(ii) stopping or suspending, or threatening to stop or
suspend, payment of all or a class of its debts; or
(d) the appointment of a receiver, receiver and manager,
administrative receiver or similar officer to any of the
Assets and undertakings of the Vendor.
3.2 (CLAIM AGAINST ASSET) No Asset is, or may in the future be, liable to a
claim by a trustee in bankruptcy or liquidator by virtue of any act or
omission of the Vendor.
4. TITLE
4.1 (TITLE) Except for the interests of each lessor or sublessor under the
Leases:
(a) the Vendor is the legal and beneficial owner of the Assets;
and
(b) at Completion the Assets are not subject to any Encumbrance.
4.2 (COMPLETION) At Completion, the Assets and all documents which are
necessary to establish the title of the Purchaser to them will be in
the possession or under the control of the Vendor. On Completion, the
Purchaser will acquire the full beneficial ownership of the Assets free
and clear of any Encumbrance or claim of any person (other than the
interests of each lessor or sublessor under the Leases or any
Encumbrances which the Purchaser may create on Completion).
5. POST 1998 EVENTS
The Business has been conducted since 31 December 1998 in the following
manner:
(a) (ORDINARY COURSE) the Business has been conducted in the
ordinary and usual course and not otherwise; and
(b) (NO DISPOSALS) except for disposals in the ordinary and usual
course of business and at not less than market value, the
Assets have been and remain in the possession or under the
control of the Vendor.
6. ASSETS
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6.1 (LOCATION) Each item of Plant and Equipment and all books and records
of the Business (except Excluded Records) are located at one of the
Sites.
6.2 (NO IMPAIRMENT) As far as the Board is aware, as at the date of this
Agreement, no notice has been served on the Vendor in respect of any of
the Assets which might materially impair, prevent or otherwise
interfere with the use of or proprietary rights in the Asset or give
rise to any right to terminate any Contract.
7. PLANT AND EQUIPMENT
The plant register in respect of the Business included in the
Disclosure Material is complete and accurate in all material respects.
8. CONTRACTS
8.1 (CONTRACTS) There is nothing (whether actual or, so far as the Board is
aware, threatened) which is likely to materially adversely affect the
Purchaser's ability to enforce the rights and entitlements of the
Vendor under the Contracts upon assignment or novation to the
Purchaser.
8.2 (BINDING CONTRACTS) No Contract:
(a) is outside the ordinary and usual course of business;
(b) imposes or is likely to impose an obligation on the Vendor to
make payments in excess of $100,000 after the date of this
Agreement;
(c) has more than 12 months to run from the date of this Agreement
until its expiration or termination;
(d) is not on arm's length terms.
8.3 (CHANGE OF CONTROL) As far as the Board is aware, no party to any
Contract is entitled:
(a) to terminate the Contract; or
(b) to require the adoption of terms less favourable to the
Vendor,
by reason of any change in the legal or beneficial ownership of the
Assets or any of them, or the performance of this Agreement.
8.4 (NO DEFAULT) The Vendor, as a party to any Contract or Lease, is not:
(a) in material default; or
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(b) but for the requirements of notice or lapse of time or both,
would be in material default.
8.5 (NO CLAIMS) As far as the Board is aware there are no set offs, counter
claims or other claims or rights of third parties in respect of any
Contract or Lease which could materially diminish or impair the
benefits of them on their being assigned to the Purchaser.
9. INTELLECTUAL PROPERTY
9.1 (DISCLOSURE) As far as the Board is aware, the Vendor does not own, use
or require in the Business the use of any copyright, patent, trade
▇▇▇▇, service ▇▇▇▇, design, business name, trade secret, confidential
information or other intellectual or industrial property rights, except
for the Intellectual Property, the Excluded Assets and use of the Third
Party Software under Contracts.
9.2 (QUIET ENJOYMENT) As far as the Board is aware as at the date of this
Agreement, there is no event, circumstance or dispute (whether actual,
or as far as the Board is aware, threatened) which could affect the
full and quiet enjoyment by the Purchaser of the Intellectual Property
on its assignment to the Purchaser.
9.3 (NO INFRINGEMENTS) As far as the Board is aware no right, title or
interest in the Intellectual Property is, as at the date of this
Agreement, being infringed or under threat of infringement.
9.4 (OWNERSHIP) All of the Intellectual Property is the legal and
beneficial property of the Vendor.
9.5 (LICENCES) The Vendor uses all Third Party Software under Contracts
under which the Vendor is entitled to use the Third Party Software in
connection with the Business.
The Purchaser acknowledges the trade marks included in the Intellectual
Property have not been registered and that no representation or
warranty is made about the registerability of the marks anywhere in the
world.
10. SITES
10.1 (SITES) In respect of the Business, the Vendor does not have any
freehold or leasehold interest in land except for the Sites.
10.2 (QUIET ENJOYMENT) There is no event, circumstance or dispute (whether
actual, or so far as the Board is aware, threatened) which could
materially adversely affect:
(a) the occupation and quiet enjoyment of any of the Sites by the
Purchaser; or
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(b) the enforcement by the Purchaser of any rights and
entitlements as lessee of any of the Leasehold Property,
(except for the need to obtain the consent of the lessor or sublessor,
mortgagee or other interested person to the assignment or novation of
each Lease).
10.3 (LEASES) The Disclosure Material contains accurate copies of each
Lease.
10.4 (NO BREACH) The Vendor is not in material default under or in breach of
any material term of any Lease.
10.5 (PAYMENTS) The Vendor has paid all rent and other outgoings which have
become due in respect of the Sites.
10.6 (NO OTHER USE OF SITES) The Vendor does not use any Site for any
material purpose other than the conduct of the Business.
11. EMPLOYEES
11.1 (DISCLOSURE) The Disclosure Material contains accurate particulars of:
(a) each employee of the Vendor engaged in the Business;
(b) each consultant of the Vendor engaged in the Business;
(c) all remuneration and other benefits payable to or conferred on
each Employee and each such consultant; and
(d) each Employee's accrued long service leave, annual leave and
sick leave entitlements as at 28 February 1999.
11.2 (INDUSTRIAL DISPUTES) At the date of this Agreement, the Vendor is not
in relation to the Business involved in and, as far as the Board is
aware, there are no present circumstances which are likely to give rise
to any industrial or trade dispute or any dispute or negotiation
regarding a claim of material importance with any trade union or
association of trade unions or organisation or body of employees.
12. RECORDS AND CORPORATE MATTERS
12.1 The records of the Vendor relating to the Business:
(a) have been fully and properly maintained;
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(b) give a true and fair view of the trading transactions,
financial and contractual position and assets and liabilities
of the Vendor in respect of the Business; and
(c) are in the possession and unqualified control of the Vendor.
12.2 The Vendor has lodged source code for release 6 of the Software in
escrow under an Escrow Agreement and has internal backup and archive
systems in respect of source code work in progress since that release.
13. FINDER'S FEES
The Vendor has not taken any action under which any person is or will
be entitled to receive from the Purchaser any finder's fee, brokerage
or other commission in connection with the acquisition of the Business.
14. YEAR 2000
As far as the Board is aware, the Vendor's "Year 2000 Readiness
Statement", a copy of which is in Annexure "A", is true and correct.
15. SUPERANNUATION AND OTHER BENEFITS FUNDS
15.1 NO AGREEMENTS
The Vendor is not a party to any agreement with any union or industrial
organisation in respect of superannuation benefits for any of the
Transferring Employees or sub-contractors of the Business.
15.2 NO FUNDS
Other than the Vendor's Fund:
(a) there are no superannuation, retirement or provident funds or
other arrangements providing for any payment to the
Transferring Employees on their retirement or death or on the
occurrence of any permanent or temporary disability in
operation by or in relation to the Vendor; and
(b) the Vendor does not contribute to any funds which will provide
the Transferring Employees or their respective dependants with
pensions, annuities or lump sum payments on retirement or
earlier death or otherwise.
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15.3 VENDOR'S FUND
The following applies with respect to the Vendor's Fund:
(a) otherwise than in the ordinary course of administration, there
are no outstanding and unpaid contributions on the part of the
Vendor or any other person (other than the Transferring
Employee) who is required to contribute to the fund for the
account of a Transferring Employee;
(b) otherwise than in the ordinary course of administration, there
are no outstanding and unpaid benefits currently due to any
Transferring Employee under the fund.
15.4 SUPERANNUATION GUARANTEE CHARGE
The Vendor will pay the superannuation guarantee charge in respect of
the Transferring Employees employed in Australia for that part of the
current contribution period (as defined in the Superannuation Guarantee
(Administration) Act 1992) up to Completion.
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SCHEDULE 6
APPORTIONMENT OF PURCHASE PRICE
(refer to clause 5.4)
Assets Portion of Purchase Price
--------------------------------------------------------------------------------
1. INTELLECTUAL PROPERTY
1.1 Geolog 1 - original copyright $12,551,000
1.2 Geolog 2 to 6 - programs and other copyright
- pre August 1989 $150,000
- post August 1989 $164,000
1.3 Rights in respect of Third Party Software $1,000
1.4 Results of research and development post $Nil
August 1989
2. GOODWILL $338,000
3. FIXED ASSETS $511,000
4. WORKING CAPITAL $405,000
-----------
Total $14,120,000
-----------
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SCHEDULE 7
THIRD PARTY SOFTWARE
The Vendor's rights in respect of the Third Party Software are as described in
the Disclosure Material. The following is merely for the purposes of
identification.
GEOLOG
The following modules of Geolog are supplied by third parties.
MODULE SUPPLIER DETAILS
Imager Halliburton - Granted to Mincom International Pty Ltd on 13 June 1995
ConnecT Chevron - Granted to Mincom International Pty Ltd on 15 March 1994
Multimin Canadian Hunter - Granted to Mincom Inc. (USA) on 20 April 1992
CorEval ACS Laboratories - Granted to Mincom Limited - signed 22 December 1997 to
commence 1 November 1996
FuzzyLogic BP Exploration - Granted to Mincom Limited - signed 10 September 1998 to
Operating Company commence 1 September 1998
Nutcracker (Geolog NT) Data Focus - Granted to Mincom Inc. (USA) effective 20 March
1997
TCL Scriptics Internet freeware.
(Internet freeware)
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Stratimagic Petrosystems - Granted to Mincom Limited effective 1 December 1998
PLANET
The following describes third party software comprising PlaNET:
MODULE SUPPLIER DETAILS
Resnet, Exploration & - Granted to Mincom Limited
Gasplan and Production
Ressim Consultants
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SCHEDULE 8
ESCROW AGREEMENTS
1. Agreement executed May 1995 between Mincom International Pty Limited,
BP Exploration Operating Company Limited and the National Computing
Centre Limited.
2. Agreement dated 9 April 1996 between Mincom Inc. (Canada), Canadian
Occidental Petroleum and the R-M Trust Company.
3. Agreement dated 21 February 1997 between Mincom Limited and Brambles
Australia Limited trading as "Recall Total Information Management".
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Each attorney executing this Agreement states that s/he has not received notice
of the revocation or suspension of the power of attorney.
SIGNED on behalf of )
MINCOM LIMITED )
in the presence of: )
---------------------------------------
Signature
----------------------------- ---------------------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of )
MINCOM INC (USA) )
in the presence of: )
---------------------------------------
Signature
----------------------------- ---------------------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of MINCOM )
INTERNATIONAL PTY LIMITED )
in the presence of: )
---------------------------------------
Signature
----------------------------- ---------------------------------------
Witness Print name
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-----------------------------
Print name
SIGNED on behalf of MINCOM )
PTY LTD in the presence of: )
---------------------------------------
Signature
----------------------------- ---------------------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of MINCOM )
SERVICES PTY LTD in the presence of: )
---------------------------------------
Signature
----------------------------- ---------------------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of MINCOM )
INC (CANADA) in the presence of: )
---------------------------------------
Signature
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----------------------------- ---------------------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of PARADIGM )
GEOPHYSICAL LIMITED by )
▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer )
in the presence of: )
---------------------------------------
)Signature
----------------------------- ---------------------------------------
Witness Print name
-----------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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ANNEXURE "A"
Year 2000 readiness statement
(refer to item 14 of Schedule 5)
1. YEAR 2000 INFORMATION DISCLOSURE ACT 1999 - AUSTRALIA
This statement is a Year 2000 disclosure statement for the purposes of the Year
2000 Information ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇. A person may be protected by that Act from
liability for this statement in certain circumstances.
This statement is authorised by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ for and on behalf of Mincom Ltd.
2. YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT OF 1998 - USA
The statements contained herein regarding products and services offered by
Mincom Ltd are "Year 2000 Readiness Disclosures" as defined by the Year 2000
Information and Readiness Disclosure Act of 1998, (Public Law 105-271, 112 Stat.
86, a USA statute) enacted on October 19, 1998.
3. INTRODUCTION
This document aims to clearly communicate PTM's policy on Year 2000 issues and
to indicate the Year 2000 readiness of the Geolog product.
In particular, this document addresses:
- the functional capability of Geolog with respect to Year 2000
- the methodology for achieving Year 2000 conformance
- PTM's policy on third party products which are embedded in Geolog
and licensed with it
- PTM's policy on the compatibility with third party products used in
conjunction with Geolog, or in the same computer environment, but
over which PTM has no control
- the testing PTM has carried out on Geolog
- PTM's recommendation for customer preparation and testing for Year
2000 readiness
- PTM's position in relation to liability
- where to find up to date information.
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4. GEOLOG YEAR 2000 READINESS
The British Standards Institution (and Standards Australia SAA/SNZ MP77) uses
four rules by which to identify the Year 2000 problem and hence define Year 2000
conformity. These rules are:
Rule 1. No value for current date will cause any
interruption in operation.
Rule 2. Date-based functionality must behave consistently for
dates prior to, during and after year 2000.
Rule 3. In all interfaces and data storage, the century in
any date must be specified either explicitly or by
unambiguous algorithms or inferencing rules.
Rule 4. Year 2000 must be recognized as a leap year in terms
of handling both 29th February and day 366.
The Geolog product from version 6.003 (12) onwards has substantially complied
with these rules with two minor exceptions.
The first is that the Unix date format currently utilised internally for system
operations on files means that Geolog may not operate correctly after early
2038. This limit will be expanded in the future when Geolog is built on 64 bit
versions of the operating systems and porting tools used for its development.
This depends on the third party vendors of these systems and tools making such
64 bit versions available. Access to these new versions of Geolog will be
available under PTM's Maintenance Agreements.
The second is that up to and including Geolog version 6.003 (15), system
generated dates were displayed in certain modules with two digit years even
though the underlying binary representation correctly stored four digits. From
version 6.003 (1), those dates will be displayed with four digits.
5. METHODOLOGY
Geolog utilises a binary date format unaffected by the Year 2000 problem for all
internal date handling including storage in the database.
All dates in text form are allowed and expected to be input with four digit
years. From version 6.003 (16) all system generated dates output in text form
will have four digit years.
Should any dates be encountered containing only a two digit year (for historical
or other reasons) the year is assumed to be 1970 or after.
A caveat on date handling relates to data loaded from contractor tapes. The
format for this data is not under control of PTM and in many cases has only a
two digit year. These are handled using the windowing technique described above.
These tapes may also contain dates that are not specifically in a date format
and as such are given no special treatment.
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6. EMBEDDED THIRD PARTY PRODUCTS
With the advance in technology to object systems and open network architectures,
most software manufacturers have specialised third party software components
embedded in their core software products. PTM is no exception, and Geolog is
licensed with a number of third party products.
PTM is not in control of the development of these products, and so we have a
policy of due diligence when we design them into our systems.
Firstly, when feasible, we check the third parties stated year 2000 readiness.
Secondly, we perform our own testing to ensure as far as possible that the
software is Year 2000 ready.
We make all commercially reasonable attempts to ensure that Geolog is compatible
with these systems and that they are also Year 2000 ready. However, we cannot
accept liability for any errors arising out of the development or use of these
systems over which we have no control. Should problems arise with these software
components, PTM would seek the assistance of the software manufacturer concerned
to address the matter promptly.
The third party products currently used and licenced in Geolog include:
- UIMX from Bluestone/Visual Edge
- Nutcracker from Datafocus (Windows NT version only)
- Acrobat Reader from Adobe
- Geoshare libraries from Schlumberger
- Openworks libraries from Halliburton/Landmark
- Tcl/Tk from Scriptics.
You should consult with the manufacturers of these products for information
relating to their degree of readiness for the Year 2000.
7. OTHER THIRD PARTY PRODUCTS
PTM software also uses, or works in conjunction with, other third party software
products such as databases and operating systems. These systems are normally
licensed separately from Geolog and directly to the customer.
We make all commercially reasonable attempts to ensure that Geolog is compatible
with these systems and that they are also Year 2000 ready. However, we cannot
take responsibility for any errors arising out of the development or use of
these systems over which we have no control. Similarly we cannot take any
responsibility for other unrelated systems which may run on the computer(s)
where you also have Geolog, or components of Geolog, installed. Clearly we
cannot take any responsibility for the function of these systems, or the effect
they could possibly have on the
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products of PTM.
The third party products currently used in conjunction with Geolog include but
not licensed with it include:
- Solaris operating system from Sun
- Irix operating system from Silicon Graphics
- Windows NT operating system from Microsoft
- Motif and X11 from the operating system vendor on Unix
platforms
- Openworks from Halliburton/Landmark.
You should consult with the manufacturers of these products for information
relating to their degree of readiness for the Year 2000.
8. GENERAL THIRD PARTY SOFTWARE READINESS COMMENTS
Some of the third party subsystems Geolog is built or runs on (Nutcracker, OS's,
etc.) will not be Year 2000 ready until Geolog version 6.004 is released in
October 1999, though in practice we have not experienced any problems while
testing.
9. GEOLOG TESTING
We have carried out Year 2000 application regression testing of Geolog 6.003.
Geolog has been tested for year 2000 compliance using the following dates (where
EST is Greenwich Mean Time +10 hours):
- Fri Dec 31 16:15:10 EST 1999
- Sat Jan 1 05:00:04 EST 2000
- Sat Jan 1 16:11:51 EST 2000
- Tue Feb 29 22:00:02 EST 2000
- Fri Jan 1 16:11:06 EST 2010
10. CUSTOMER TESTING FOR YEAR 2000 READINESS
The ultimate test for Year 2000 readiness of a production implementation of
Geolog (or any software system) is to run the system in test mode in the exact
environment that will be used before, during and after 1st January 2000. This
test should be carried out with data that approximates, as closely as
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possible, the data that will be used in live production.
While our testing was considerable, the tests were carried out in a laboratory
environment which can never give a 100% assurance for specific production site
and/or data configuration combinations. We therefore recommend that customers
conduct their own Year 2000 readiness testing on their site specific production
platforms once Geolog has been installed and using their own production data
converted for acceptance testing.
For maintained licensees, Year 2000 evaluation license keys will be available by
request from ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇. These keys are only available for Geolog
versions 6.003 (16) onwards and will allow execution windowed over the year
2000.
We invite users of those keys to return their test results for general
publication.
11. LICENCE TERMS AND LIABILITY
PTM's legal responsibilities and liabilities, including for Year 2000 related
matters, arise (if at all) solely under written agreements with customers and
are subject to the limits and exclusions in those agreements.
All other liability, however it arises (including for negligence), is expressly
excluded to the maximum extent permitted by law.
12. UPDATES
The information described in this document is correct for versions 6.003 (12)
through 6.003 (16) of Geolog and is subject to change without notice. Update
versions of this document may be found on the PTM web site at
"▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇".
13. INFORMATION
The information in this document is provided for information purposes only and
does not constitute a warranty of any kind nor does it amend or expand any
existing warranty that Mincom may have with a customer.
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ANNEXURE "B"
Drill bit device
(refer to item 2.2 of Schedule 2)
[GRAPHIC]
PTM
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ANNEXURE "C"
[NOT USED]
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ANNEXURE "D"
Sketch of Licensed Area
(refer to clause 7.5)
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--------------------------------------------------------------------------------
GROUND FLOOR
[FLOOR PLAN DIAGRAM]
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ANNEXURE "E"
December Accounts
PTM BALANCE SHEET
AS AT 31 DECEMBER 1998
(US$'000)(1)
CURRENT ASSETS
Receivables 2,377
Other 66
-----
TOTAL CURRENT ASSETS 2,443
-----
NON CURRENT ASSETS
Fixed Assets 326
-----
TOTAL NON CURRENT ASSETS 326
-----
TOTAL ASSETS 2,769
=====
CURRENT LIABILITIES
Trade Creditors and Accruals 80
Other Creditors and Accruals 252
Provisions 168
Deferred Revenue 1,685
-----
TOTAL CURRENT LIABILITIES 2,185
-----
TOTAL LIABILITIES 2,185
-----
NET ASSETS 584
=====
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Source: Mincom
Note: (1) Based on exchange rates of AUD/USD = 0.6096, AUD/GBP = 0.3669 and
AUD/CAD = 0.9435
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ANNEXURE "F"
Letter of offer of employment
(refer to clause 11.3)
Dear [PTM Employee]
Following the acquisition of PTM by Paradigm Geophysical Limited, we are pleased
to offer you employment in the position of [current position] in the PTM
business unit of Paradigm. This offer is on terms and conditions equivalent to
the terms and conditions of your employment with Mincom at the time of the
acquisition of PTM by Paradigm. The key details of this offer include:
1. REMUNERATION
Your total gross annual salary will be $xx. In addition, you will also have the
opportunity to earn an "at risk" incentive component of $xx, dependent on your
individual performance and the overall financial performance of the group.
Details of the criteria that must be met in order to earn this incentive
component are attached.
2. TENURE
Your period of employment with PTM as part of the Mincom Group will be
recognised by Paradigm for the purposes of calculating any future redundancy.
3. LEAVE ENTITLEMENTS
Annual leave, long service leave and sick leave entitlements will be calculated
on the same basis as under your previous employment contract. You can elect to
roll over the balance of these entitlements to Paradigm or to receive the cash
component upon transfer of your employment.
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4. OTHER
Other key terms and conditions of your employment, such as those relating
to[insert key terms for each region] will remain equivalent to those detailed in
your previous employment contract. Attached is a summary of these additional
benefits for your review.
We look forward to your continued association with the PTM business.
Yours faithfully,
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ANNEXURE "G"
Employee benefit lists
(refer to clause 11.3 (a))
SUMMARY OF STANDARD BENEFITS FOR US EMPLOYEES
Listed below is a brief summary of the standard benefits that are currently
offered to PTM employees in the USA and Canada as part of their total
remuneration package. This does not include the salary and incentive details
which are specified in each employees' individual employment contract.
ANNUAL AND SICK LEAVE
- Four weeks paid annual leave per annum
- Ten paid holidays per year, including two floating holidays
- Ten Sick Days per annum
- Unpaid family medical leave up to 12 weeks
MEDICAL BENEFITS / INSURANCE
- Medical and life insurance for employees and their dependents effective
from commencement of employment with insurance coverage for each of these
paid by Mincom (refer attached plan).
- Dental insurance for employees effective from the commencement of
employment with insurance coverage for each of these paid by Mincom.
- Dependent coverage under a dental plan is not paid by Mincom but is
available as a salary deduction.
- Accidental Death and Dismemberment coverage for employees paid by Mincom
- Short Term Disability and Long Term Disability coverage for employees paid
by Mincom. This provides employees unable to work due to illness or
accident for up to 90 days with payment of
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60% of their salary up to a total of $1500 and after 90 days with 60% of
their salary up to a maximum of $5000.
- Voluntary Participation in the Section 125 Cafeteria Plan.
SUPERANNUATION
- Participation in the 401(K) Plan with Mincom matching 50% of the
employee's contribution to a maximum of 6% and subject to a government
regulated maximum of approximately $10,000 per annum.
OTHER STANDARD BENEFITS
- $100 annual allowance towards a health club membership upon proof of
membership
- After 6 months, Tuition Reimbursement Program, providing partial
assistance to qualifying employees for undergraduate and graduate courses.
- Mincom also funds access to computer based CD Rom self-instruction
training materials for both technical and personal development.
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SUMMARY OF STANDARD BENEFITS
FOR AUSTRALIAN EMPLOYEES
Listed below is a brief summary of the standard benefits that are currently
offered to PTM employees in Australia as part of their total remuneration
package. This does not include the salary and incentive details which are
specified in each employees' individual employment contract.
DEDUCTIONS FROM GROSS SALARY
- In accordance with the Federal Government's Superannuation Guarantee
Charge, an amount of 7% of the employee's base salary paid to the
nominated fund.
LEAVE ENTITLEMENTS
- Annual Leave accrues at the rate of 20 days per annum up to a maximum
accrual of 40 days. Any accrued leave in excess of this limit will be
forfeited by the employee if not taken within 3 months of the accrued
leave reaching this limit
- Long Service Leave will accrue in accordance with the relevant state
legislation [13 weeks accrues after 15 years of service.]
- Sick Leave of 10 days pro rated per annum
- Unpaid parental leave of up to 12 months is available to Mincom employees
who have completed a minimum of one year of continuous service
- Bereavement Leave of 1 - 5 days
INJURY / DEATH
- All employees (full time or more than 20 hours a week part time) are
entitled to salary continuance cover providing a monthly benefit of 75% of
salary commencing after 90 days absence from work due to injury or
illness.
- Mincom currently provides death cover to Australian employees who are
members of the Mincom Australia Superannuation Fund. This provides for a
lump sum to be paid to dependents if a fund member dies prior to age 65.
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OTHER BENEFITS
- Membership of professional associations - Mincom will pay or reimburse the
annual subscription associated with a membership of a professional
association where membership is directly related to the employee's career
and job responsibilities
- Study Assistance - Mincom reimburses employees for fees and books (to a
maximum of AUD$500 per annum) following a year's study in a relevant area
and subject to successful completion
- Computer Based Training - Mincom funds access to computer based self
instruction training materials for both technical and personal development
- Motor Vehicle Leases - the company provides eligible employees (those with
a total remuneration package of over $55,000) with the opportunity to
obtain a motor vehicle of their choice under a novated lease agreement.
The total cost of the vehicle is reflected in the remuneration package by
way of a salary sacrificing arrangement. In addition, Mincom negotiates a
corporate motor vehicle insurance policy with competitive rates for all
novated vehicles.
- Mileage Allowances - Mincom provides a mileage allowance (46 cents / km)
for vehicles privately owned by employees but used for work purposes.
- Private Health Cover - Mincom has negotiated corporate private health
cover insurance rates for all employees
- Business Travel - employees travelling on business purposes are entitled
to economy class travel, accommodation and a per diem amount of $64.20 in
a capital city and $56.95 in a country town.
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UK EMPLOYEE BENEFITS
- SALARY CONTINUANCE (PERMANENT HEALTH INSURANCE POLICY): All employees of
Mincom Services Pty Ltd, are entitled to salary continuance cover which
provides a monthly benefit of 75% of salary commencing after 180 days
absence from work, due to injury or sickness.
- DEATH COVER (LIFE INSURANCE): Mincom provides Death Cover to all
employees. If an employee dies while an employee prior to the age 65,
his/her dependants will receive a lump sum payment which is the equivalent
of 4 times gross salary. A dependent means any person who is financially
dependent on another person or was so at the time of the other person's
death.
- LEAVE:
Annual Leave Entitlement: Employees are entitled to 5 weeks annual
leave per year (ie; 25 days per year). The leave year is fixed for
all staff and runs from January 1st to December 31st of each year.
Leave must be accumulated on a monthly pro-rated basis before it can
be taken. Currently staff are allowed to carry over from one year to
the next, up to 5 days and this should be taken within the first
three months of the new leave year. Leave vests to the employee on
termination or resignation of employment with Mincom.
Sick Leave Entitlement: Employees are entitled to 10 working days
sick leave per year. This leave accrues but does not vest to the
employee on termination or resignation of employment with Mincom.
Parental Leave: Mincom employees who have completed at least one
year of continuous service are eligible for unpaid leave for up to
12 months for parental care.
Carers Leave: This forms part of an employee's sick leave.
Bereavement Leave: Employees are entitled to 1 - 5 days bereavement
leave.
- ANNUAL SALARY REVIEWS: Mincom salaries are reviewed on an annual basis
effective 1 October each year.
- SUPERANNUATION: Employees may join the Mincom Services Pty Ltd Private
Pension Plan after 12 months service. This policy is arranged with
Standard Life Assurance Company. On the condition that the employee
contributes a minimum of 5% of his/her basic salary, Mincom will
contribute an additional 3% during the first year in the scheme, 4.5%
during the second year and 6% thereafter.
- NATIONAL INSURANCE CONTRIBUTION: National Insurance contributions are
payable as per the statutory requirements in the United Kingdom by both
the employee and Mincom.
- COMPUTER BASED TRAINING: Mincom funds access to computer based
self-instruction training materials for both technical and personal
development.
- BUSINESS TRAVEL: Employees travelling are entitled to Economy class
travel, accommodation and reasonable expenses on the production of
receipts.
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- BUSINESS RELATED CAR EXPENSES: EXPENSES INCURRED IN THE USE OF YOUR
PRIVATE VEHICLE ON COMPANY BUSINESS WILL BE REIMBURSED AT RATES APPROVED
BY THE INLAND REVENUE.
